Citation NR: 9616778
Decision Date: 06/12/96 Archive Date: 06/24/96
DOCKET NO. 93-10 728 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to a permanent and total disability rating for
pension purposes.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and N. Wayne
ATTORNEY FOR THE BOARD
L. R. Bucci, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1965 to January
1966.
This appeal arises from an August 1991 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois.
The Board notes that this case was REMANDED to the RO in July
1993 in order to obtain any medical records which were the
basis of the grant of Social Security benefits. In response
to the RO’s request, the Social Security Administration
informed the RO in February 1996 that the veteran’s Social
Security file did not contain any medical records. Thus,
this case has been returned to the Board for further
appellate consideration.
REMAND
In this case, the veteran contends that he is entitled to a
permanent and total disability rating for pension purposes as
a result of his multiple nonservice-connected disorders. In
this regard, the veteran maintains that he has been unable to
work as a truck driver since December 1990 due to his
disabilities.
Upon review of the claims file, the Board notes that on his
substantive appeal and at the August 1991 VA examination, the
veteran complained of headaches and back pain in addition to
his nonservice-connected disorders. However, the August 1991
VA examination was deficient in that the examiner failed to
specifically assess and report the nature and extent of all
the veteran’s claimed disorders, including any headache and
back disorders. In this regard, the United States Court of
Veterans Appeals has held that, when an examination report is
inadequate, it is part of the VA’s duty to assist the veteran
in obtaining another examination. See Perez v. Derwinski, 2
Vet.App. 562, 564 (1992). In addition, the Board points out
that the August 1991 VA examination is the most recent
evaluation conducted of the veteran’s nonservice-connected
disorders. As the August 1991 examination is almost six
years old, the record no longer adequately reveals the
current state of the veteran’s disorders. Thus, the Board
concludes that another VA examination would provide a record
upon which an equitable and procedurally correct decision can
be made.
Further development is also required to secure pertinent
medical records identified by the veteran. Littke v.
Derwinski, 1 Vet.App. 90, 91 (1990). In this regard, the
veteran testified that since his accident he had “some”
operations at St. Mary’s Hospital in East St. Louis,
Illinois, where screws were placed in his left ankle. These
records are not currently associated with the claims file.
Finally, the Board points out that at the March 1993 personal
hearing, the veteran’s representative requested that an
extra-schedular disability rating be considered for the
veteran’s nonservice-connected residuals of a crush injury of
the left leg with peroneal nerve damage. The United States
Court of Veterans Appeals has held that two issues are
“inextricably intertwined” when they are so closely tied
together that a final decision cannot be rendered unless both
issues have been considered. Harris v. Derwinski, 1 Vet.App.
180, 183 (1991). Thus, in light of the Harris decision, the
issue of entitlement to an extra-schedular rating should be
resolved prior to final appellate consideration of
entitlement to a permanent and total disability rating for
pension purposes.
Accordingly, this case is REMANDED for the following action:
1. The RO should attempt to obtain all
relevant medical records concerning
treatment of his nonservice-connected
disorders. This request specifically
includes, but is not limited to,
obtaining all operative records from St.
Mary’s Hospital in East St. Louis,
Illinois. In this regard, the RO should
request that the veteran specify the
dates of any operations in his left leg
and ankle. After securing any necessary
releases, the RO should obtain these
records and associate them with the file.
2. After completion of the foregoing,
the veteran should be afforded a VA
general medical examination in order to
determine the nature and extent of all
disabilities, including headaches and any
back disorder. This examination should
be conducted in accordance with the VA
Physician's Guide for Disability
Evaluation Examinations. The claims
folder, after all additional medical
records have been obtained and
incorporated, must be made available to
and reviewed by the VA examiner prior to
the requested examination. All opinions
must be accompanied by a complete written
rationale.
3. The RO should then review the
examination report and all of the
foregoing instructions. If the requested
action has not been carried out in full,
appropriate remedial action should be
undertaken.
4. Thereafter the RO should review the
evidence and determine whether the
veteran's claim for entitlement to a
permanent and total disability rating for
pension purposes may now be granted. If
the decision remains adverse to the
veteran, he and his representative should
be provided with an appropriate
Supplemental Statement of the Case and an
opportunity to respond thereto. The case
should then be returned to the Board for
further appellate consideration.
The purposes of the REMAND are to assist the veteran in the
development of his claim and to procure clarifying medical
data. The Board intimates no opinion, legal or factual, as
to the ultimate disposition of the veteran's appeal. No
action is required of the appellant until he receives further
notice.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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